Opinion
A00A0609, A00A0608.
DECIDED: APRIL 25, 2000.
Armed robbery, etc. Liberty Superior court. Before Judge Rahn.
John E. Pirkle, for appellant (case no. A00A068).
Phillips Kitchings, Joseph C. Kitchings, for appellant (case no A00A0609).
J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.
After being charged with two counts of armed robbery, possession of a firearm during the commission of a crime and possession of a sawed-off shotgun, Michael Barnes and Larry Riley plead guilty and were sentenced to 15 years, with eight to serve, followed by seven years probation. Because the trial court gave Barnes and Riley first offender status under OCGA § 42-8-60, it did not sentence them to serve the ten-year mandatory minimum sentence required by OCGA § 17-10-6.1(b) for serious violent felonies. As a result, the Department of Corrections refused to pick up Riley and Barnes from the Liberty County jail, contending they were given an illegal sentence because they were not given the mandatory ten-year minimum sentence.
After another hearing, the trial court declared the previous sentence void and re-sentenced Barnes and Riley to 15 years, with ten to serve. Both Barnes and Riley appealed this to the Georgia Supreme Court, claiming that the sentence violated the Constitutional prohibition against ex post facto laws. They argue that at the time the crimes were committed there was no prohibition against according them first offender status.
The Supreme Court transferred the case to this Court, stating that jurisdiction was within the Court of Appeals because of its opinion in Fleming v. State, 271 Ga. 587 ( 523 S.E.2d 315) (1999). In Fleming, the Supreme Court agreed with appellants' argument that denying them the opportunity to be treated as a first offender impermissibly altered their situations to their disadvantage and inflicted a greater punishment than was mandated at the time the crimes were committed. Id. at 590.
It should be noted that when the trial court re-sentenced Riley and Barnes, it relied on case law that had not yet been reversed by the Supreme Court in this opinion. See Fleming v. State, 233 Ga. App. 483 ( 504 S.E.2d 542) (1998); Burleson v. State, 233 Ga. App. 769 ( 505 S.E.2d 515) (1998).
OCGA § 17-10-6.1 provides that any person convicted of a serious violent felony "shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court. . . ." OCGA § 17-10-6.1(b).
The legislature amended this subsection and also enacted a new provision in OCGA § 42-8-66, the First Offender Act, to state that a defendant who is convicted of a serious violent felony as defined in OCGA § 17-10-6.1(a) is not eligible for first offender treatment under OCGA § 42-8-60. Fleming, supra at 588-589. These provisions became effective on March, 27, 1998. Id.
Riley and Barnes committed the crimes charged on January 29, 1998. A crime must be construed and punished according to the provisions of the law existing at the time of its commissions. Fleming, supra at 590. Therefore, the trial court erred in determining that Riley and Barnes were not eligible for first offender status. Accordingly, the above cases are reversed and are remanded to the trial court for consideration under the First Offender Act. Fleming, supra. See also Horton v. State, 241 Ga. App. 605, 606 ( 527 S.E.2d 254) (1999).
Judgments reversed and cases remanded. Ruffin and Ellington, JJ., concur.